The power of social media as a virtual platform for delivering content created by an individual or entity is limitless. Social media is, overall, the most powerful and easily accessible tool for the common man to publish and disseminate his intellectual work to the general public.

With such ease of spreading one’s intellectual property through social media platforms, comes the risk of misuse and intellectual property infringement. In today’s digital age, intellectual property infringement on social media platforms is not uncommon. Such cases of intellectual property infringement naturally bring the intermediaries, which are these social media platforms, to the fore.

Recently, in the case of Living Media India Limited & Anr. vs. Aabtak Channel.com (John Does) & Ors¹, the Delhi High Court prohibited Defendants from using Plaintiff’s name and trademark ‘AAJ TAK’ without Plaintiff’s permission on various social media platforms including Twitter, Facebook and Instagram. The court ordered these social media platforms to remove all infringing posts, pages and videos referencing the plaintiff’s trademark, AAJ TAK. In another case, in the cases of Facebook Inc. v. Surinder Malik & Ors² and Instagram LLC v Surinder Malik & Ors³Delhi High Court pointed out that although online intermediaries, such as Facebook and Instagram, cannot play an active role in posting the infringing content on their platforms, being facilitators of the infringement, they are in the obligation to remove this content as it becomes known to them.

Social media giants, Facebook, Instagram, YouTube, Twitter and LinkedIn are often seen removing or deleting content infringing the intellectual property rights of rights holders on their sites. These platforms have explicit rules and procedures to protect the rights of intellectual property owners and remove any infringing content they may host. Facebook and Instagram, for example, both have a “Rights Manager” tool, which helps protect intellectual property owner content by detecting any content that matches the original work. They also have mechanisms in place to report intellectual property violations on their platforms by clearly identifying the link/post that is believed to violate the rights of the intellectual property owner. In 2020, following a copyright infringement case in the United States, Instagram issued a statement that it does not encourage embedding and stressed that express consent is always required from the owner of origin of any work before any copyrighted content is posted on Instagram. The video-sharing platform, YouTube, also has extensive IP protection policies in place. One can file separate copyright and trademark takedown requests through a simple web form available on this site. Similarly, Twitter has established a specific trademark policy outlining what constitutes infringement and what is not, and a copyright policy outlining what is fair use and what is not. ‘is not.

With vlogs and reels circulating the internet, the intellectual property rights of copyright and trademark holders are increasingly at stake. It should be noted, however, that social media platforms cannot be held responsible. intellectual property infringement only insofar as the intellectual property owners take care to protect their rights and bring them to the attention of the intermediaries. Courts have repeatedly ruled that intermediaries can only be held liable when the users themselves provide them with the information necessary for a successful withdrawal. If an intermediary does not have reasonable “knowledge” of the infringement taking place on their platform, they may invoke the “Safe Harbor” defense under the country’s information technology law.

Footnotes

1.CS(COMM) 193/2022

2.CM(M)1263/2019

3.CM(M)1267/2019

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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